SENTENZA CHAHAL C. GRAN BRETAGNA

(estratto)

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)

72. The first applicant complained that his deportation to India would constitute a violation of Article 3 of the Convention (art. 3), which states:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission upheld this complaint, which the Government contested. A. Applicability of Article 3 (art. 3) in expulsion cases

73. As the Court has observed in the past, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to political asylum is not contained in

either the Convention or its Protocols (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).

74. However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) in the receiving country. In these circumstances, Article 3 (art. 3) implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, paras. 90-91, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70, and the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103). The Government contested this principle before the Commission but accepted it in their pleadings before the Court.

B. Expulsion cases involving an alleged danger to national security

75. The Court notes that the deportation order against the first applicant was made on the ground that his continued presence in the United Kingdom was unconducive to the public good for reasons of

national security, including the fight against terrorism (see paragraph 25 above). The parties differed as to whether, and if so to what extent, the fact that the applicant might represent a danger to the security of the United Kingdom affected that State's obligations under Article 3 (art. 3).

76.Although the Government's primary contention was that no real risk of ill-treatment had been established (see paragraphs 88 and 92 below), they also emphasised that the reason for the intended deportation was national security. In this connection they submitted, first, that the guarantees afforded by Article 3 (art. 3) were not

absolute in cases where a Contracting State proposed to remove an individual from its territory. Instead, in such cases, which required an uncertain prediction of future events in the receiving State, various factors should be taken into account, including the danger posed by the person in question to the security of the host nation.

Thus, there was an implied limitation to Article 3 (art. 3) entitling a Contracting State to expel an individual to a receiving State even where a real risk of ill-treatment existed, if such removal was required on national security grounds. The Government based this submission in the first place on the possibility of implied limitations as recognised in the Court's case-law, particularly paragraphs 88 and 89 of its above-mentioned Soering judgment. In support, they furthermore referred to the principle under international law that the right of an alien to asylum is subject to qualifications, as is provided for, inter alia, by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above). In the alternative, the threat posed by an individual to the national security of the Contracting State was a factor to be weighed in the balance when considering the issues under Article 3 (art. 3). This approach took into account that in these cases there are varying degrees of risk of ill-treatment. The greater the risk of ill-treatment, the less weight should be accorded to the threat to national security. But where there existed a substantial doubt with regard to the risk of ill-treatment, the threat to national security could weigh heavily in the balance to be struck between protecting the rights of the individual and the general interests of the community. This was the case here: it was at least open to substantial doubt whether the alleged risk of ill-treatment would materialise; consequently, the fact that Mr Chahal constituted a serious threat to the security of the United Kingdom justified his deportation.

77. The applicant denied that he represented any threat to the national security of the United Kingdom, and contended that, in any case, national security considerations could not justify exposing an individual to the risk of ill-treatment abroad any more than they could justify administering torture to him directly.

78. The Commission, with whom the intervenors (see paragraph 6 above) agreed, rejected the Government's arguments. It referred to the Court's Vilvarajah and Others judgment (cited at paragraph 73 above, p. 36, para. 108) and expressed the opinion that the guarantees afforded by Article 3 (art. 3) were absolute in character, admitting of no exception. At the hearing before the Court, the Commission's Delegate suggested that the passages in the Court's Soering judgment upon which the Government relied (see paragraph 76 above) might be taken as authority for the view that, in a case where there were serious doubts as to the likelihood of a person being subjected to treatment or punishment contrary to Article 3 (art. 3), the benefit of that doubt could be given to the deporting State whose national interests were threatened by his continued presence. However, the national interests of the State could not be invoked to override the interests of the individual where substantial grounds had been shown for believing that he would be subjected to ill-treatment if expelled.

79. Article 3 (art. 3) enshrines one of the most fundamental values of democratic society (see the above-mentioned Soering judgment, p. 34, para. 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Unlike most of the substantive clauses of the Convention and

of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163, and also the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 42, para. 115).

80. The prohibition provided by Article 3 (art. 3) against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion (see the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103). In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (see paragraph 61 above).

81. Paragraph 88 of the Court's above-mentioned Soering judgment, which concerned extradition to the United States, clearly and forcefully expresses the above view. It should not be inferred from the Court's remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of the same judgment, that there is any room for balancing the risk of ill-treatment against the

reasons for expulsion in determining whether a State's responsibility under Article 3 (art. 3) is engaged.

82. It follows from the above that it is not necessary for the Court to enter into a consideration of the Government's untested, but no doubt bona fide, allegations about the first applicant's terrorist activities and the threat posed by him to national security.

C. Application of Article 3 (art. 3) in the circumstances of the case

1. The point of time for the assessment of the risk

83. Although there were differing views on the situation in India and in Punjab (see paragraphs 87-91 below), it was agreed that the violence and instability in that region reached a peak in 1992 and had been abating ever since. For this reason, the date taken by the Court for its assessment of the risk to Mr Chahal if expelled to India is of importance.

84. The applicant argued that the Court should consider the position in June 1992, at the time when the decision to deport him was made final (see paragraph 35 above). The purpose of the stay on

removal requested by the Commission (see paragraph 4 above) was to prevent irremediable damage and not to afford the High Contracting Party with an opportunity to improve its case. Moreover, it was not appropriate that the Strasbourg organs should be involved in a continual fact-finding operation.

85. The Government, with whom the Commission agreed, submitted that because the responsibility of the State under Article 3 of the Convention (art. 3) in expulsion cases lies in the act of exposing an individual to a real risk of ill-treatment, the material date for the assessment of risk was the time of the proposed deportation. Since Mr Chahal had not yet been expelled, the relevant time was that of the proceedings before the Court.

86. It follows from the considerations in paragraph 74 above that, as far as the applicant's complaint under Article 3 (art. 3) is concerned, the crucial question is whether it has been substantiated that there is a real risk that Mr Chahal, if expelled, would be subjected to treatment prohibited by that Article (art. 3). Since he

has not yet been deported, the material point in time must be that of the Court's consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive.

2. The assessment of the risk of ill-treatment

(a) The arguments

(i) General conditions

87. It was the applicant's case that the Government's assessment of conditions in India and Punjab had been profoundly mistaken throughout the domestic and Strasbourg proceedings. He referred to a number of reports by governmental bodies and by intergovernmental and non-governmental organisations on the situation in India generally and in Punjab in particular, with emphasis on those reports concerning 1994 and 1995 (see paragraphs 49-56 above) and argued that this material established the contention that human rights abuse in India by the security forces, especially the police, remained endemic. In response to the Government's offer to return him to the part of India of his choice, he asserted that the Punjab police had abducted and killed militant Sikhs outside their home State in the past. Although he accepted that there had been some improvements in Punjab since the peak of unrest in 1992, he insisted that there had been no fundamental change of regime. On the contrary, what emerged from the above reports was the continuity of the practices of the security agencies. In this respect he pointed to the fact that

the director general of the Punjab police, who had been responsible for many human rights abuses during his term of office between 1992 and 1995, had been replaced upon his retirement by his former deputy

and intelligence chief.

88. The Government contended that there would be no real risk of Mr Chahal being ill-treated if the deportation order were to be implemented and emphasised that the latter was to be returned to whichever part of India he chose, and not necessarily to Punjab. In this context they pointed out that they regularly monitored the situation in India through the United Kingdom High Commission in New Delhi. It appeared from this information that positive concrete steps had been taken and continued to be taken to deal with human rights abuses. Specific legislation had been introduced in this regard; the National Human Rights Commission, which performed an important function, continued to strengthen and develop; and steps had been taken by both the executive and judicial authorities to deal with the remaining misuse of power. The situation in India generally was therefore such as to support their above contention. Furthermore, with reference to the matters set out in paragraphs 45-48 above, they contended that the situation in Punjab had

improved substantially in recent years. They stressed that there was now little or no terrorist activity in that State. An ombudsman had been established to look into complaints of misuse of power and the new Chief Minister had publicly declared the government's intentions to stamp out human rights abuses. Legal proceedings had been brought against police officers alleged to have been involved in unlawful

activity.

89. Amnesty International in its written submissions informed the Court that prominent Sikh separatists still faced a serious risk of "disappearance", detention without charge or trial, torture and extrajudicial execution, frequently at the hands of the Punjab police. It referred to its 1995 report which documented a pattern of

human rights violations committed by officers of the Punjab police acting in under-cover operations outside their home State (see paragraph 55 above).

90. The Government, however, urged the Court to proceed with caution in relation to the material prepared by Amnesty International, since it was not possible to verify the facts of the cases referred to.

Furthermore, when studying these reports it was tempting to lose sight of the broader picture of improvement by concentrating too much on individual cases of alleged serious human rights abuses. Finally,

since the situation in Punjab had changed considerably in recent years, earlier reports prepared by Amnesty and other organisations were now of limited use.

91. On the basis of the material before it, the Commission accepted that there had been an improvement in the conditions prevailing in India and, more specifically, in Punjab. However, it was unable to find in the recent material provided by the Government any solid evidence that the Punjab police were now under democratic control or that the judiciary had been able fully to reassert its own independent authority in the region.

(ii) Factors specific to Mr Chahal

92. Those appearing before the Court also differed in their assessment of the effect which Mr Chahal's notoriety would have on his security in India. In the Government's view, the Indian Government were likely to be astute to ensure that no ill-treatment befell Mr Chahal, knowing that the eyes of the world would be upon him. Furthermore, in June 1992 and December 1995 they had sought and received assurances from the Indian Government (see paragraph 37 above).

93. The applicant asserted that his high profile would increase the danger of persecution. By taking the decision to deport him on national security grounds the Government had, as was noted by Mr Justice Popplewell in the first judicial review hearing (see paragraph 34 above), in effect publicly branded him a terrorist. Articles in the Indian press since 1990 indicated that he was regarded as such in India, and a number of his relatives and acquaintances had been detained and ill-treated in Punjab because of their connection to him. The assurances of the Indian Government were of little value since that Government had shown themselves unable to control the security forces in Punjab and elsewhere. The applicant also referred to examples of well-known personalities who had recently "disappeared".

94. For the Commission, Mr Chahal, as a leading Sikh militant suspected of involvement in acts of terrorism, was likely to be of special interest to the security forces, irrespective of the part of India to which he was returned.

(b) The Court's approach

95. Under the Convention system, the establishment and verification of the facts is primarily a matter for the Commission (Articles 28 para. 1 and 31) (art. 28-1, art. 31). Accordingly, it is only in exceptional circumstances that the Court will use its powers in this area (see the Cruz Varas and Others judgment mentioned at paragraph 74 above, p. 29, para. 74).

96. However, the Court is not bound by the Commission's findings of fact and is free to make its own assessment. Indeed, in cases such as the present the Court's examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one, in view of the absolute character of Article 3 (art. 3) and the fact that it enshrines one of the fundamental values of the democratic societies making up the

Council of Europe (see the Vilvarajah and Others judgment mentioned at paragraph 73 above, p. 36, para. 108).

97. In determining whether it has been substantiated that there is a real risk that the applicant, if expelled to India, would be subjected to treatment contrary to Article 3 (art. 3), the Court will assess all the material placed before it and, if necessary, material obtained of its own motion (see the above-mentioned

Vilvarajah and Others judgment, p. 36, para. 107). Furthermore, since the material point in time for the assessment of risk is the date of the Court's consideration of the case (see paragraph 86 above), it will

be necessary to take account of evidence which has come to light since the Commission's review.

98. In view of the Government's proposal to return Mr Chahal to the airport of his choice in India, it is necessary for the Court to evaluate the risk of his being ill-treated with reference to conditions throughout India rather than in Punjab alone. However, it must be borne in mind that the first applicant is a well-known

supporter of Sikh separatism. It follows from these observations that evidence relating to the fate of Sikh militants at the hands of the security forces outside the State of Punjab is of particular relevance.

99. The Court has taken note of the Government's comments relating

to the material contained in the reports of Amnesty International (see paragraph 90 above). Nonetheless, it attaches weight to some of the most striking allegations contained in those reports, particularly with regard to extrajudicial killings allegedly perpetrated by the Punjab police outside their home State and the action taken by the Indian Supreme Court, the West Bengal State Government and the Union Home Secretary in response (see paragraph 55 above). Moreover, similar assertions were accepted by the United Kingdom Immigration Appeal Tribunal in Charan Singh Gill v. Secretary of State for the Home Department (see paragraph 54 above) and were included in the 1995 United States' State Department report on India (see paragraph 52 above). The 1994 National Human Rights Commission's report on Punjab substantiated the impression of a police force completely beyond the control of lawful authority (see paragraph 49 above).

100. The Court is persuaded by this evidence, which has been corroborated by material from a number of different objective sources, that, until mid-1994 at least, elements in the Punjab police were accustomed to act without regard to the human rights of suspected Sikh militants and were fully capable of pursuing their targets into areas of India far away from Punjab.

101. The Commission found in paragraph 111 of its report that there had in recent years been an improvement in the protection of human rights in India, especially in Punjab, and evidence produced subsequent to the Commission's consideration of the case indicates that matters continue to advance.

In particular, it would appear that the insurgent violence in Punjab has abated; the Court notes the very substantial reduction in terrorist-related deaths in the region as indicated by the respondent Government (see paragraph 45 above). Furthermore, other encouraging events have reportedly taken place in Punjab in recent years, such as the return of democratic elections, a number of court judgments against police officers, the appointment of an ombudsman to investigate abuses of power and the promise of the new Chief Minister to "ensure transparency and accountability" (see paragraphs 46 and 48 above). In addition, the 1996 United States' State Department report asserts that during 1995 "there was visible progress in correcting patterns of abuse by the [Punjab] police" (see paragraph 53 above). 102. Nonetheless, the evidence demonstrates that problems still persist in connection with the observance of human rights by the security forces in Punjab. As the respondent Government themselves recounted, the United Kingdom High Commission in India continues to receive complaints about the Punjab police, although in recent months these have related mainly to extortion rather than to politically motivated abuses (see paragraph 47 above). Amnesty International alleged that "disappearances" of notable Sikhs at the hands of the Punjab police continued sporadically throughout 1995 (see paragraph 56 above) and the 1996 State Department report referred to the killing of two Sikh militants that year (see paragraph 53 above).

103. Moreover, the Court finds it most significant that no concrete evidence has been produced of any fundamental reform or reorganisation of the Punjab police in recent years. The evidence referred to above

(paragraphs 49-56) would indicate that such a process was urgently required, and indeed this was the recommendation of the NHRC (see paragraph 49 above). Although there was a change in the leadership of the Punjab police in 1995, the director general who presided over some of the worst abuses this decade has only been replaced by his former deputy and intelligence chief (see paragraph 87 above). Less than two years ago this same police force was carrying out well-documented raids into other Indian States (see paragraph 100 above) and the Court cannot entirely discount the applicant's claims that any recent reduction in activity stems from the fact that key figures in the campaign for Sikh separatism have all either been killed, forced abroad or rendered inactive by torture or the fear of torture. Furthermore, it would appear from press reports that evidence of the full extent of past abuses is only now coming to light (see paragraph 53 above).

104. Although the Court is of the opinion that Mr Chahal, if returned to India, would be most at risk from the Punjab security forces acting either within or outside State boundaries, it also attaches significance to the fact that attested allegations of serious human rights violations have been levelled at the police elsewhere in

India. In this respect, the Court notes that the United Nations' Special Rapporteur on torture has described the practice of torture upon those in police custody as "endemic" and has complained that inadequate measures are taken to bring those responsible to justice (see paragraph 51 above). The NHRC has also drawn attention to the problems of widespread, often fatal, mistreatment of prisoners and has called for a systematic reform of the police throughout India (see paragraph 50 above).

105. Although the Court does not doubt the good faith of the Indian Government in providing the assurances mentioned above (paragraph 92), it would appear that, despite the efforts of that Government, the NHRCand the Indian courts to bring about reform, the violation of human rights by certain members of the security forces in Punjab and elsewhere in India is a recalcitrant and enduring problem

(see paragraph 104 above). Against this background, the Court is not persuaded that the above assurances would provide Mr Chahal with an adequate guarantee of safety.

106. The Court further considers that the applicant's high profile would be more likely to increase the risk to him of harm than otherwise. It is not disputed that Mr Chahal is well known in India to support the cause of Sikh separatism and to have had close links with other leading figures in that struggle (see paragraphs 17 and 20 above). The respondent Government have made serious, albeit untested, allegations of his involvement in terrorism which are undoubtedly known to the Indian authorities. The Court is of the view that these factors would be likely to make him a target of interest for hard-line elements in the security forces who have relentlessly pursued suspected Sikh militants in the past (see paragraphs 49-56 above).

107. For all the reasons outlined above, in particular the attested involvement of the Punjab police in killings and abductions outside their State and the allegations of serious human rights violations which continue to be levelled at members of the Indian security forces elsewhere, the Court finds it substantiated that there is a real risk of Mr Chahal being subjected to treatment contrary to Article 3 (art. 3) if he is returned to India.

Accordingly, the order for his deportation to India would, if executed, give rise to a violation of Article 3 (art. 3).